Соответствующая норма
Spain
Practice Relating to Rule 158. Prosecution of War Crimes
Section A. General
Spain’s LOAC Manual (1996) states:
The Geneva Conventions and Additional Protocol I impose on States parties the obligation to adopt in their domestic legislation all the legislative measures necessary to determine adequate penal sanctions against those who commit, or order to be committed, any kind of grave breaches. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 11.8.b.(1); see also § 1.1.d.(6).
The manual further states: “Spain has complied with the obligation undertaken when ratifying the Geneva Conventions and dedicated Title II of Volume II of the Military Criminal Code to categorize and sanction the offences against the laws and customs of war.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 11.8.b.(1)
The manual also provides:
States have the obligation to search for persons accused of having committed, or having ordered to be committed, grave breaches, being obliged to make them appear before their own tribunals, regardless of their nationality. They can also agree to the extradition of those persons in order for them to be judged by other States, in accordance with the legal obligations which regulate the said extradition.
With regard to breaches that are not of a grave nature, the necessary measures must be taken for their immediate cessation. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, §§ 11.8.b.(1) and 11.8.b.(2).
Spain’s LOAC Manual (2007) states: “The law of armed conflict provides that governments must take all necessary legislative measures to establish the penal and disciplinary sanctions to be applied to those who commit or order others to commit violations of the laws and customs of war.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 1.1.d.(6).
The manual further states:
The most effective instrument for enforcing the law of armed conflict is the obligation binding on States party to the four Geneva Conventions of 1949 to prosecute offences that they define as grave breaches. To this end, they must establish appropriate criminal sanctions in general and military codes. Spain fulfils this obligation by criminalizing such breaches in … the 1985 Military Penal Code (crimes against the laws and customs of war) and … the 1995 Penal Code (crimes against protected persons and property in armed conflicts).
In the case of offences that are not classed as grave breaches, measures must be adopted immediately to suppress them.
Spanish domestic legislation, increasing the criminal protection of the victims of armed conflict, criminalizes simple infringements or acts contrary to the provisions of the Conventions in relation to the conduct of hostilities and the protection of the victims of armed conflict and cultural property. However, minor infringements can be treated as military disciplinary offences. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 11.7.a.
Under Spain’s Law on Judicial Power (1985), Spanish criminal courts have jurisdiction over offences committed by Spanish nationals and aliens, on Spanish territory or outside it, which constitute genocide or any other offence that, according to international treaties or conventions, must be prosecuted in Spain. 
Spain, Law on Judicial Power, 1985, Article 23(4).
Spain’s Law on Judicial Power (1985), as amended in 2009, states:
2. … [Spanish courts] have jurisdiction over acts that constitute offences according to Spanish penal law even if these were committed outside the national territory, as long as those criminally responsible were Spanish nationals or foreigners who had acquired Spanish nationality prior to the commission of the act, and if the following conditions are met:
c. That the offender has not been acquitted, pardoned or sentenced abroad or, in the latter case, has not completed his or her sentence abroad. If he or she only completed it partly, this will be taken into account in order to proportionally reduce the [sentence] which he or she must complete.
4. … Spanish courts have jurisdiction over offences committed by Spanish and foreign nationals outside the national territory, which constitute any of the following offences according to Spanish law:
h. Any other [act] that according to international treaties and conventions, in particular those Conventions on international humanitarian law and the protection of human rights, must be prosecuted in Spain.
Without prejudice to that disposed by the treaties and international conventions that Spain is a party to, in order for Spanish tribunals to have jurisdiction over the above-mentioned offences it must be demonstrated … that no other procedure leading to an investigation or effective prosecution, as the case may be, of the same punishable acts has been initiated in another country with jurisdiction or within an international tribunal.
The prosecution initiated before Spanish courts will be temporarily dismissed when it is established that another process on the denounced acts has been initiated in the country or tribunal referred to in the above paragraph.
5. If the prosecution is transferred to Spain according to the conditions in … paragraph 4, paragraph 2(c) of this article will in any case be applicable. 
Spain, Law on Judicial Power, 1985, as amended on 3 November 2009, Article 23(2)(c), (4)(h) and (5).
Spain’s Military Criminal Code (1985) contains a part on “Crimes against the laws and customs of war” and provides for the punishment of soldiers committing acts listed thereunder. 
Spain, Military Criminal Code, 1985, Articles 69–78.
Spain’s Penal Code (1995), in chapters entitled “Genocide” and “Offences against protected persons and objects in the event of armed conflict”, criminalizes offences listed thereunder. Protected persons in the meaning of the chapter on “Offences against protected persons and objects in the event of armed conflict” are those protected by the 1949 Geneva Conventions and both 1977 Additional Protocols, as well as those falling within the scope of “whatever other international treaty to which Spain is a party”. The chapter contains several provisions regarding the punishment of certain acts “committed in the event of an armed conflict”. 
Spain, Penal Code, 1995, Articles 607–614.
Spain’s Penal Code (1995), as amended in 2003, states:
Anyone who in the event of an armed conflict uses or orders the employment of means or methods of combat that are prohibited … shall be punished with ten to 15 years’ imprisonment, without prejudice to the penalty for the results of such acts. 
Spain, Penal Code, 1995, as amended on 25 November 2003, Article 610.
Spain’s Penal Code (1995), as amended in 2010, provides:
Anyone who, in the event of an armed conflict, commits or orders to commit any of the following violations or acts in breach of the international treaties to which Spain is a signatory and relating to the conduct of hostilities, the regulation of the means and methods of war, the protection of the wounded, sick and shipwrecked, the treatment of prisoners of war, the protection of civilians and the protection of cultural property in the event of armed conflict, shall be sentenced to six months to two years’ imprisonment. 
Spain, Penal Code, 1995, as amended on 23 June 2010, Article 614.
In 2009, in the Gaza case, the Criminal Chamber of Spain’s National High Court was called upon to decide the appeal of the Prosecution Service in a case concerning a bombing in Gaza in 2002 by the Israeli Air Force. The Court noted:
B) With regard to the principle of universal justice, established in Article 23(4) of the L.O.P.J. [Law on Judicial Power (1985)], its applicability is not to be considered absolute …
a) In the legal framework, Article 23(23.4) of the L.O.P.J. establishes a first limitation, as Spanish courts have jurisdiction over offences committed by Spanish and foreign [nationals] outside the national territory, which may constitute acts that, according to international treaties and conventions, must be prosecuted in Spain (Article 23(4)(i)); in the analyzed case [these fall under] offences against the international community under the modality of offences against protected persons and objects in the event of an armed conflict established in Articles 608(3), 611(1) and 613(1)(b) and (e) of the PC [Penal Code (1985)], in relation with 1949 IV Geneva Convention and 1977 Additional Protocol I … However, this is the case provided that the offender has not been acquitted, pardoned or sentenced abroad or, in the latter case, has not completed his or her sentence or has only completed it partly (Article 23(2)(c) of the L.O.P.J.). 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, p. 4.
The Court further stated:
a) The S.T.C. 237/05 [Constitutional Court judgment] of 26 September 2005 (Guatemala case) and STC 227/07 [judgment] of 22 October 2007 (Falun Gong case) have established the following criteria on the matter:
2. … The common compromise (at least in principle) of all States being the prosecution of atrocious offences affecting the international community, priority should be granted for procedural, political and penal reasons to the jurisdiction in which the offence was committed. 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, pp. 5–6.
In 2010, in the Couso case, which concerned the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America, the Criminal Chamber of Spain’s Supreme Court held:
E) Even admitting for purely dialectic purposes that doubts could exist … concerning the rational indications of an offence found by the examining magistrate, it would still be probable that an offence was committed, which would thus have to be determined in an oral trial.
F) The [1949] IV Geneva Convention and its [1977] Additional Protocol I, incorporated to our legal system through Article 96(1) CE [1978 Spanish Constitution], which establishes the protection of persons defined as “civilians” (in particular journalists) … and the obligation of aut dedere aut iudicare have been manifestly unfulfilled … by the US. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Segundo, § 1, p. 7.
[emphasis in original]
On the issue raised in the appeal concerning breach of the law, the Court noted:
1. … [T]he application … of Article 611(1) and 608(3) PC [Penal Code (1995)], and failing this of Article 614 PC, on their own or in combination with the offence of homicide in Article 138 or of manslaughter in Article 142 PC, in so far as they concern civilians “protected” by the [1949] IV Geneva Convention and its [1977] Additional Protocol, is claimed [by the appellants].
2. Article 611 of the PC effectively punishes
“anyone who in the event of an armed conflict commits [any of the following acts], without prejudice to the penalty for the results of such acts, shall be punished with ten to fifteen years’ imprisonment:
1. Carries out or orders an indiscriminate or excessive attack or makes the civilian population the object of attacks, reprisals or acts or threats of violence the final purpose of which is to spread terror.”
Meanwhile, Article 614 PC provides that:
“Anyone who, in the event of an armed conflict, commits or orders the commission of any of the following violations or acts in breach of the international treaties to which Spain is a signatory and relating to the conduct of hostilities, the protection of the wounded, sick and shipwrecked, the treatment of prisoners of war, the protection of civilians and the protection of cultural property in the event of armed conflict, shall be sentenced to six months to two years’ imprisonment”.
In addition, Article 608 of our PC [Penal Code (1995)] … entitled “Offences against Protected Persons and Objects in the Event of Armed Conflict” within the … [Title] dedicated to “Offences against the International Community” specifies that
“for the purposes of this chapter, protected persons are understood as:
3. The civilian population and individual civilians protected by the IV Geneva Convention of 12 August 1949 or Additional Protocol I of 8 June 1977”. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, §§ 1–2, pp. 11–12.
[emphasis in original]
The Court also referred to norms of IHL relevant to the case under review, including Article 146 of the 1949 Geneva Convention IV on the obligation to prosecute or extradite those having ordered the commission of grave breaches on grave breaches, and Article 147 of the 1949 Geneva Convention IV listing grave breaches of the Convention. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 13.
The Court upheld the appeal concerning breach of the law and held:
The appealed decision declared the termination of the proceedings … as it considered that the “facts [of] the case did not constitute an offence” … [H]owever, the proceedings carried out do not permit sharing the conclusions of the first instance tribunal; rather, the facts [denounced] merit being subsumed under the cited penal provisions and the aforementioned norms of International Humanitarian Law. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Sexto, § 2, p. 16.
[emphasis in original]
The Court upheld the appeal against the order of 23 October 2009 by the Third Section of the Criminal Chamber of the Spanish National Court, which declared the termination of the proceedings, and held that “the proceedings must continue, and the outstanding preparatory enquiries must be undertaken, as well as any others arising from the clarification of the events under investigation.” 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section III, pp. 20–21.
In 2011, in the Tibet Committee case, the Criminal Chamber of Spain’s Supreme Court was called upon to decide whether there was a sufficient link to Spain to invoke Spain’s universal jurisdiction. The Court, holding that there was an insufficient link and dismissing the appeal, found:
II: Legal reasoning
A) …
According to the appellant the decision appealed violates the right of the appellants to a judicial remedy both by erroneously applying international treaties ratified by Spain, from which Spain derives the jurisdiction to hear the facts complained of, and on the basis of the existence of links connecting the case to Spanish jurisdiction, a requirement that derives from … paragraph 4 of article 23 of the LOPJ [Law on Judicial Power (1985)].
B) The current paragraph 4 of article 23 of the LOPJ with regard to the extension of Spanish jurisdiction, drafted in accordance with the amendment introduced by Law 1/09 of 3 November (published in the Boletín Oficial del Estado [official gazette] on 4 November 2009 and which entered into force the day after its publication), as stated in the explanatory memorandum introducing the legislation, was introduced to effect
a change in the treatment of what has come to be known as “universal jurisdiction”, through the amendment of article 23 of the Law on Judicial Power to, on the one hand, include categories of crimes not previously included, the prosecution of which is protected by the conventions and customs of international law, such as crimes against humanity and war crimes. On the other hand, the amendment adapts and clarifies the provision in accordance with the principle of subsidiarity, the doctrine of the Constitutional Court, and the jurisprudence of the Supreme Court.
The stipulated provision pertinently provides … as follows:
4. … Spanish courts have jurisdiction over offences committed by Spanish or foreign nationals outside the national territory, which constitute any of the following offences according to Spanish law:
h. Any other [act] that according to international treaties and conventions, in particular those Conventions on international humanitarian law and the protection of human rights, must be prosecuted in Spain.
Without prejudice to the provisions of international treaties or conventions that Spain is a party to, in order for Spanish courts to have jurisdiction over the above-mentioned offences it must be demonstrated that the alleged perpetrators are in Spain, or that there are victims of Spanish nationality, or establish some relevant link connecting the act to Spain and, in any case, [it must be established] that no other procedure leading to an investigation or effective prosecution, as the case may be, of the same punishable acts has been initiated in another country with jurisdiction or before an international tribunal.
The criminal proceeding initiated before Spanish courts will be provisionally dismissed if it is established that another proceeding of the alleged facts has been initiated in a country or tribunal referred to in the above paragraph. …
C) In the present case, the plaintiff “dissected” the different types of offences ratione materiae (crimes against humanity, torture, war crimes) … in order to invoke various related public international law treaties, emanating from the so called (and widely developed doctrinally and jurisprudentially) “Customary International Law” … . In particular, … the [1949] Geneva Conventions and the Statutes of the International Criminal Tribunals of Nuremberg [1945 IMT Charter (Nuremberg)], Tokyo [1946 IMT Charter (Tokyo)], the former Yugoslavia [1993 ICTY Statute] and Rwanda [1994 ICTR Statute], and the [1998] Statute [of] the International Criminal Court and concordant resolutions, and of international tribunals with jurisdiction on penal matters (see ECHR [European Court of Human Rights]).
The apellant omitted that on the basis of the present wording of the above provision, which is binding on Spanish courts, the extension of Spanish jurisdiction is contingent, as a “conditio sine qua non” (and this “without prejudice to provisions of international treaties and conventions signed by Spain …”), upon the existence of a relevant link with Spain.
It is this … undefined legal concept that needs to be determined in this case. This provision, in accordance with the line of reasoning previously adopted by this chamber … corrects the “broad view” adopted by judgments of international courts, which does not correspond to the requirements of universal jurisdiction.
In the written claim, the appellant … substantiates the link [to Spain] in terms of:
1) The dual criminality of the facts alleged … [T]his claim lacks consistency with the intended objective.
2) The existence of a Spanish victim … Without prejudice to the proof or not of this fact, or of its adequacy, it is acknowledged in the written submission of the appellants that the acts committed against him are the subject of a pending lawsuit in another proceeding … As such, it is clear that this link fails in the present circumstances.
3) In the third place, the appellants plead general submissions regarding the bilateral relations between Spain and China … It is clear that … the rigour required by … criminal law means that such a submission fails.
III. Ruling
THE COURT HOLDS:
The appellant’s motion for leave to appeal in cassation IS DISMISSED[.] 
Spain, Supreme Court, Tibet Committee case, Judgment, 6 October 2011, pp. 1–4.
In 2009, in its written replies to the Committee against Torture concerning its fifth periodic report, Spain stated:
167. … [W]ith regard to a possible conflict between the [1977] Amnesty Law and the obligations of the Spanish State under article 5 of the [1984] Convention against Torture concerning the establishment of jurisdiction over the crime of torture and the [duty to] prosecute or extradite persons accused of inflicting acts of torture, it should be mentioned that the Convention against Torture … entered into force on 26 June 1987, while the Law of 1977 refers to acts that took place before the adoption of the former law. Having mentioned this, however, the efforts undertaken in the last years by the Spanish State with regard to the victims of the civil war and the dictatorship must be emphasized.
169. Nonetheless, the non-applicability of the statute of limitations in the 1977 Amnesty Law for acts of torture that resulted in “grave violence to life and person” applies to acts committed between 15 June 1976 and 15 December 1977; with regard to the [acts] prior to the first of these dates, paragraph a) of article 1 of the above-mentioned law, applies.  
Spain, Written replies by the Government of Spain to the Committee against Torture concerning the list of issues raised in connection with the fifth periodic report of Spain, 22 September 2009, UN Doc. CAT/C/ESP/Q/5/Add.1, §§ 167 and 169; see also § 164.
In 2010, in its report to the UN General Assembly on the status of the 1977 Additional Protocols, Spain stated:
Members of the armed forces who contravene the aforementioned principles [of IHL] will be punished in accordance with the Military Criminal Code, adopted through Basic Act 13/1985 and amended by Basic Act 3/2002. The Military Criminal Code also gives precedence to “crimes against the laws and customs of war”, described in Title Two of … the Book of Crimes. Articles 69 to 78 set out the penalties for violating the principles of international humanitarian law, in order of the seriousness of the acts committed. 
Spain, Report on the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, 5 May 2010, Section 2.
States have the primary responsibility to investigate and prosecute ICC [International Criminal Court] crimes. ICC is a court of last resort. Ideally, it should have no cases. We must, however, acknowledge that for many States there is a lack of resources and capacity to exercise criminal law proceedings for such complex and large-scale crimes as genocide, crimes against humanity and war crimes. …
… Victims of war crimes, crimes against humanity and genocides, wherever they are found, deserve justice. While we must do our best to encourage all States to live up to their obligations to investigate and prosecute, the International Criminal Court was created to take up the cases when States were not able or willing to do so. 
Sweden, Statement by the Director General for Legal Affairs at the Ministry for Foreign Affairs of Sweden before the UN General Assembly on Agenda Item 75: Report of the International Criminal Court, made on behalf of Denmark, Finland, Iceland, Norway and Sweden, 31 October 2013.
A new Act on Criminal Responsibility for Genocide, Crimes against Humanity and War Crimes will enter into force on 1 July 2014. The act replaces the Genocide Act (1964:169) and the provision on international crime in the Penal Code that will cease to apply. The new act strengthens the protection against war crimes committed in non-international armed conflicts since the predominant part of the regulation concerning war crimes is applicable in international as well as non-international armed conflicts. 
Sweden, Information on the “Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict”, 16 June 2014, § 2.
We must continue to work against impunity for serious violations of international humanitarian law and human rights; persons suspected of war crimes, genocide and crimes against humanity must be held accountable. Each state has a duty and a responsibility to investigate and prosecute such crimes. It is primarily at the domestic level that solutions to the impunity gap must be found. The International Criminal Court is a court of last resort and is of great importance to uphold international humanitarian law and human rights law and to end impunity for mass atrocity crimes. 
Sweden, Statement by the counsellor and legal adviser on the protection of victims of armed conflict, made on behalf of Denmark, Finland, Iceland, Norway and Sweden, 20 October 2014.
Women and especially girls are particularly exposed to violence in conflict. Violence against women affects a third of all women globally. The violence is often amplified in areas affected by conflict. …
The fight against impunity for sexual and gender-based violence is … crucial. Each state has a duty and a responsibility to investigate and prosecute such crimes. It is primarily at the domestic level that solutions to the impunity gap must be found. 
Sweden, Statement by the Minister for Foreign Affairs of Sweden before the UN Security Council during a debate on the protection of civilians in armed conflict, made on behalf of Denmark, Finland, Iceland, Norway and Sweden, 30 January 2015.
[T]here is still a lack of accountability for violations of international law committed against children in armed conflict. The fight against impunity and assuring the victims’ access to justice are crucial. Crimes against children must be independently and impartially investigated and prosecuted to the full extent of the law. Individual responsibility must be upheld and this means that all perpetrators must be held accountable and punished accordingly, regardless of their status or capacity. 
Sweden, Statement by the permanent representative of Sweden before the UN Security Council during an open debate on children and armed conflict, made on behalf of Finland, Iceland, Norway and Sweden, 18 June 2015.
The [1949] Geneva Conventions and their [1977] Additional Protocols have rules that protect medical personnel and civilians. According to international law, concerned states have a responsibility to investigate if alleged war crimes have been committed. This is also valid in situations such as that of Kunduz. 
Sweden, Answer by the Minister for Foreign Affairs to written question 2015/16:122 in Parliament on the independent investigation of the attack on a hospital in Kunduz, 20 October 2015.